Religion II

It is really helpful to review specific cases. They help explain application of abstract principles. A number of advocacy groups have posted information about the first amendment on the internet. Many of these advocacy groups have specific points of view. Some favor school prayer; some do not, for example. But they provide valuable resource material, nonetheless. For an excellent presentation on THE CONSTITUTIONAL PRINCIPLE: SEPARATION OF CHURCH AND STATE, try the following page: Religion Cases See also: First Amendment Cases

Here is a discussion of some of the issues considered by the courts.

Tax Exemptions Tax exemptions that benefit churches do not violate the Establishment Clause. Why? It is said that tax exemptions are available to charitable institutions without regard to their religious character. Walz v. Tax commission (1970) This is one of those situations where the neutrality principle is at war with the establishment principle. If the government grants exemptions to churches, it is clearly providing aid to religion. But if it fails to grant the exemption, it is in some sense discriminating against them, because the basis for denial of the exemption is the religious character of the activity.

Grants to Charitable Institutions Operated by Religious Institutions What about direct subsidies to hospitals operated by religious groups; or to catholic, Lutheran or Jewish welfare agencies. Here again, the courts have ruled that grant of financial assistance to these institutions does not represent establishment of religion. These subsidies are deemed to pass the three prong test: they have secular purposes--the promotion of health or prevention of poverty; they do not have the effect of promoting religion; and the do not involve entanglement in religious matters. The most recent important case is BOWEN v. KENDRICK (1988). There, the Court considered the Adolescent Family Life Act (AFLA), which authorized federal grants to public or nonprofit private organizations or agencies for services and research in the area of premarital adolescent sexual relations and pregnancy. AFLA required grant applicants, among other things, to describe how they will, "as appropriate in the provision of services involve families of adolescents and involve religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives." AFLA stated that "grants may be made only to projects or programs which do not advocate, promote, or encourage abortion."

The Court applied the three part test found in Lemon v. Kurtzman: (1) AFLA has a valid secular purpose eliminating or reducing social and economic problems caused by teenage sexuality, pregnancy. (2) The Act does not have the primary effect of advancing religion. (3) The Act does not create an excessive entanglement of church and state. The Court found no problem with the Act's finding that religious institutions should have a role to play:

• "these provisions of the statute reflect at most Congress' considered judgment that religious organizations can help solve the problems to which the AFLA is addressed. Nothing in our previous cases prevents Congress from making such a judgment or from recognizing the important part that religion or religious organizations may play in resolving certain secular problems. Particularly when, as Congress found, "prevention of adolescent sexual activity and adolescent pregnancy depends primarily upon developing strong family values and close family ties," 300z(a)(10)(A), it seems quite sensible for Congress to recognize that religious organizations can influence values and can have some influence on family life, including parents' relations with their adolescent children.... This Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs. "

The Court found that the statute did not, at least on its face, involve grant of funds to institutions "pervasively sectarian" in the same sense as the Court has held parochial schools to be. "There is accordingly no reason to fear that the less intensive monitoring involved here will cause the Government to intrude unduly in the day-to-day operation of the religiously affiliated AFLA grantee." However, the Court remanded to the District Court for proceedings to determine whether the actual grant money was going to pervasively sectarian institutions, the supervision of which might involve excessive entanglement in religious organizations.

Aid to Schools. Until its recent decision, in Zellman v. Simmons-Harris, aid to schools has been an entirely different matter. The Court has always been far more concerned about aid to sectarian elementary and secondary schools. We present here some of the significant cases. Some of them, were later over-ruled, so be careful to read to the end, or you may be left with an incorrect view of the law. The Court's view has evolved substantially.

• In the period from 1947 to 1968, the basic principle of no aid to religion through school benefits was unquestioned. Thereafter for some 15 years, the Court termed its efforts as attempts to draw a line against aid that would be divertible to support the religious, as distinct from the secular, activity of an institutional beneficiary. Then, starting in 1983, concern with divertibility was gradually lost in favor of approving aid in amounts unlikely to afford substantial benefits to religious schools, when offered evenhandedly without regard to a recipient's religious character, and when channeled to a religious institution only by the genuinely free choice of some private individual. Now, the three stages are succeeded by a fourth, in which the substantial character of government aid is held to have no constitutional significance, and the espoused criteria of neutrality in offering aid, and private choice in directing it, are shown to be nothing but examples of verbal formalism. Zellman v. Simmons-Harris (2002) (dissenting opinion).

Everson v Board of Education (1947) permitted use of public funds to pay for bus transportation to parochial schools on the theory that aid was targeted to the children rather than sectarian schools. Transportation of students involved no indoctrination. Should the state impose quality standards, there was no risk of entanglement with doctrinal disputes or selection of personnel. Board of Education v Allen (1968) adopted the same approach with respect to non-sectarian text books. But it drew the line at direct financial aid to K-12 teachers' salaries in Lemon v Kurtzman (1971). Here, the danger of entanglement and government interference could not be overcome. Yet, in Tilton v Richardson (1971) the Court upheld financial aid to church related colleges and universities.

The last two decades has witnessed a somewhat schizophrenic approach to K-12 education. In MUELLER v. ALLEN, 463 U.S. 388 (1983), the Court sustained as against an establishment clause claim a Minnesota statute which allowed state taxpayers, in computing their state income tax, to deduct expenses incurred in providing "tuition, textbooks and transportation" for their children attending an elementary or secondary school. The Court wrote:

• "One fixed principle in this field is our consistent rejection of the argument that "any program which in some manner aids an institution with a religious affiliation" violates the Establishment Clause. Hunt v. McNair, 413 U.S. 734, 742 (1973). See, e. g., Bradfield v. Roberts, 175 U.S. 291 (1899); Walz v. Tax Comm'n, 397 U.S. 664 (1970). For example, it is now well established that a State may reimburse parents for expenses incurred in transporting their children to school, Everson v. Board of Education, 330 U.S. 1 (1947), and that it may loan secular textbooks to all schoolchildren within the State, Board of Education v. Allen, 392 U.S. 236 (1968)."

The Court distinguished direct tuition grants provided only to parents of children in nonpublic schools:

• This fact had considerable bearing on our decision striking down the New York statute at issue; we explicitly distinguished both Allen and Everson on the grounds that "[i]n both cases the class of beneficiaries included all schoolchildren, those in public as well as those in private schools." Moreover, we intimated that "public assistance (e. g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited," might not offend the Establishment Clause. ....As Widmar and our other decisions indicate, a program, like [Minnesota's'], that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause.

Aid to promote testing In Levitt v. Committee for Public Education, 413 U.S. 472 (1973) the Court struck down state reimbursement for the preparation of teacher prepared tests necessary to assure that students had reached state educational goals. Impermissible entanglement resulted from necessary state supervision to assure that testing activities did not have a non-secular content. But in COMMITTEE FOR PUBLIC EDUCATION AND RELIGIOUS LIBERTY v. REGAN, (1980) the court sustained a New York statute authorizing the use of public funds to reimburse church-sponsored and secular nonpublic schools for performing various testing and reporting services mandated by state law. In contrast to the invalidated system, the new scheme did not reimburse nonpublic schools for the preparation, administration, or grading of teacher-prepared tests.

Title 1 Assistance--special education: In several cases, the Supreme Court struck down various schemes to provide financial support of one kind or another to instructional programs. In AGUILAR v. FELTON (1985) the court considered New York City's use of federal funds received under the Title I program of the Elementary and Secondary Education Act of 1965 to pay the salaries of public school employees who teach in parochial schools in the city. The State had installed careful supervision to make sure that these teachers did not engage in sectarian instruction. This, the court found unduly entangled the government in policing religious schools:

• "The principle that the state should not become too closely entangled with the church in the administration of assistance is rooted in two concerns. When the state becomes enmeshed with a given denomination in matters of religious significance, the freedom of religious belief of those who are not adherents of that denomination suffers, even when the [473 U.S. 402, 410] governmental purpose underlying the involvement is largely secular. In addition, the freedom of even the adherents of the denomination is limited by the governmental intrusion into sacred matters. "[T]he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." McCollum v. Board of Education, 333 U.S. 203, 212 (1948)."

In GRAND RAPIDS SCHOOL DISTRICT v. BALL (1985) (later over-ruled, see below) a school district adopted two programs - Shared Time and Community Education - that provide classes to nonpublic school students at public expense in classrooms located in and leased from the nonpublic schools. The Shared Time program offers classes during the regular schoolday that are intended to supplement the "core curriculum" courses required by the State. The Shared Time teachers were full-time employees of the public schools, but a "significant portion" of them had previously taught in nonpublic schools.

• We conclude that the challenged programs have the effect of promoting religion in three ways. The state-paid instructors, influenced by the pervasively sectarian nature of the religious schools in which they work, may subtly or overtly indoctrinate the students in particular religious tenets at public expense. The symbolic union of church and state inherent in the provision of secular, state-provided instruction in the religious school buildings threatens to convey a message of state support for religion to students and to the general public. Finally, the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects. For these reasons, the conclusion is inescapable that the Community Education and Shared Time programs have the "primary or principal" effect of advancing religion, and therefore violate the dictates of the Establishment Clause of the First Amendment.

In BOARD OF ED. OF KIRYAS JOEL v. GRUMET,(1994) the Court dealt with a school district specially crafted (or gerrymandered) to reach only Hasidic Jews. The Village of Kiryas Joel in Orange County, New York, was a religious enclave of Satmar Hasidim, practitioners of a strict form of Judaism. The village fell within the Monroe-Woodbury Central School District until a special state statute passed in 1989 carved out a separate district, following village lines, to serve this distinctive population. 1989 N.Y.Laws, ch. 748. The question presented was whether the Act creating the separate school district violated the Establishment Clause of the First Amendment. The Court struck down the State's attempt to create this special district.

A change in point of view: AGOSTINI v. FELTON (1997) In Aguilar v. Felton the Court had held that a New York City program that sent public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to Title I of the Elementary and Secondary Education Act of 1965 necessitated an excessive entanglement of church and state and violated the First Amendment's Establishment Clause. Some 10 years later, the State asked the Court to reconsider its ruling in the Aguilar and Ball cases. The Court agreed and changed course:

• Our more recent cases have undermined the assumptions upon which Ball and Aguilar relied. To be sure, the general principles we use to evaluate whether government aid violates the Establishment Clause have not changed since Aguilar was decided. For example, we continue to ask whether the government acted with the purpose of advancing or inhibiting religion, and the nature of that inquiry has remained largely unchanged. See Witters, 474 U.S., at 485-486; Bowen v. Kendrick, 487 U.S. 589, 602-604 (1988) (concluding that Adolescent Family Life Act had a secular purpose); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 248-249 (1990) (concluding that Equal Access Act has a secular purpose); cf. Edwards v. Aguillard, 482 U.S. 578 (1987) (striking down Louisiana law that required creationism to be discussed with evolution in public schools because the law lacked a legitimate secular purpose). Likewise, we continue to explore whether the aid has the "effect" of advancing or inhibiting religion. What has changed since we decided Ball and Aguilar is our understanding of the criteria used to assess whether aid to religion has an impermissible effect. Applying this reasoning to New York City's Title I program, it is clear that Title I services are allocated on the basis of criteria that neither favor nor disfavor religion.

Mitchell v Helms (2000)

The Helms case involved a challenge to Chapter 2 of the Education Consolidation and Improvement Act of 1981. That Act channels federal funds via state educational agencies (SEA's) to local educational agencies (LEA's), which in turn lend educational materials and equipment, such as library and media materials and computer software and hardware, to public and private elementary and secondary schools to implement "secular, neutral, and non ideological" programs. Equipment so purchased remains the property of the funding agency. Under the Act, a private school receives the materials and equipment by submitting an application to the LEA. In the case on review, the LEA had provided library books, computers, and computer software, slide and movie projectors, overhead projectors, television sets, tape recorders, VCR's, projection screens, laboratory equipment, maps, globes, filmstrips, slides, and cassette recordings. The challenge appears to have arisen, in part, from claims that Catholic schools in Jefferson Parish, Louisia, were at times diverting equipment for religious instructional purposes.

As we have said, there was evidence in the trial court that some of the recipient schools had "diverted" the equipment to religious purposes. For this reason, the opponents attempted to focus on the potential for abuse and misuse. Direct aid to the institution itself, they argued, enhanced the potential for misuse. In cases where publicly paid and supervised employees come into the school to deliver secular instruction, there is less danger of such misuse. If an elementary school controls federally provided equipment, a student who challenges diversion must challenge religious and educational authority, and prevailing community sentiment, to bring concerns forward. The actual diversion which allegedly occurred in these schools, probably encouraged the litigation.

Whose Opinion Counts: One must read the Helms case with great care. A majority of the Court affirmed the use of Chapter 2 aid under these circumstances. The plurality opinion of four Justices appears to articulate a new way of looking at these cases which seems to focus almost exclusively upon whether the governmental aid is offered in a neutral manner. But only Four Justices joined in the opinion of Justice Thomas. But since five Justices directly attacked the reasoning of the plurality opinion, it is more accurate to consider the opinion of Justice O'Connor as the opinion of the Court.

The plurality of four justices argued for a new test which focusses primarily on whether federal aid is "neutral". "In distinguishing between indoctrination that is attributable to the State and indoctrination that is not," the Court wrote:

• " we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination. To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, see Allen, 392 U. S., at 245-247 (discussing dual secular and religious purposes of religious schools), then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients.

The plurality felt that the fact that the quantity of aid was determined by the number of students enrolled, by private choice, further assured governmental neutrality. "As a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so "only as a result of the genuinely independent and private choices of individuals." Agostini, supra, at 226 (internal quotation marks omitted). We have viewed as significant whether the "private choices of individual parents," as opposed to the "unmediated" will of government" The plurality opinion seems to suggest that the plurality would have affirmed the aid program even if schools regularly engaged in diversion.

The O'Connor Majority: For this perhaps careless language, five Justices heaped a fair amount of criticism on the plurality. "I write separately", stated Justice O'Connor, "because, in my view, the plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school-aid programs." O'Connor's opinion, because her opinion currently commands an majority comprised of herself and the four Helms dissenters. She wrote:

• Reduced to its essentials, the plurality's rule states that government aid to religious schools does not have the effect of advancing religion so long as the aid is offered on a neutral basis and the aid is secular in content. The plurality also rejects the distinction between direct and indirect aid, and holds that the actual diversion of secular aid by a religious school to the advancement of its religious mission is permissible. Although the expansive scope of the plurality's rule is troubling, two specific aspects of the opinion compel me to write separately. First, the plurality's treatment of neutrality comes close to assigning that factor singular importance in the future adjudication of Establishment Clause challenges to government school-aid programs. Second, the plurality's approval of actual diversion of government aid to religious indoctrination is in tension with our precedents and, in any event, unnecessary to decide the instant case. Thus, I agree with Justice Souter's conclusion that our "most recent use of neutrality' to refer to generality or evenhandedness of distribution ... is relevant in judging whether a benefit scheme so characterized should be seen as aiding a sectarian school's religious mission, but this neutrality is not alone sufficient to qualify the aid as constitutional." Post, at 17-18.

Justice O'Connor and the dissent felt that the plurality wrongly suggested that diversion to religious purposes would not raise constitutional problems. She wrote: "I also disagree with the plurality's conclusion that actual diversion of government aid to religious indoctrination is consistent with the Establishment Clause. See ante, at 21-27.

• Although "[o]ur cases have permitted some government funding of secular functions performed by sectarian organizations," our decisions "provide no precedent for the use of public funds to finance religious activities." Rosenberger, supra, at 847 (O'Connor, J., concurring). At least two of the decisions at the heart of today's case demonstrate that we have long been concerned that secular government aid not be diverted to the advancement of religion. In both Agostini, our most recent school-aid case, and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236 (1968), we rested our approval of the relevant programs in part on the fact that the aid had not been used to advance the religious missions of the recipient schools. See Agostini, supra, at 226-227 ("[N]o evidence has ever shown that any New York City Title I instructor teaching on parochial school premises attempted to inculcate religion in students"); Allen, supra, at 248 ("Nothing in this record supports the proposition that all textbooks, whether they deal with mathematics, physics, foreign languages, history, or literature, are used by the parochial schools to teach religion"). Of course, our focus on the lack of such evidence would have been entirely unnecessary if we had believed that the Establishment Clause permits the actual diversion of secular government aid to religious indoctrination. Our decision in Bowen v. Kendrick, 487 U. S. 589 (1988), also demonstrates that actual diversion is constitutionally impermissible. (Emphasis Added).

The decision in Zellman v. Simmons-Harris (2002), the school voucher case, put Justice O'Connor's narrower opinion to the test. Ohio's Pilot Project Scholarship Program provided tuition support, and other educational choices to families within the Cleveland City School District, as a response to a court ordered state takeover. Under the program, both religious and non religious schools in the district could participate. Public schools in adjacent school districts could likewise participate, but none chose to do so. . Tuition aid was distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. In the 1999-2000 school year, 82% of the participating private schools had a religious affiliation, and 96% of the students participating in the scholarship program were enrolled in religiously affiliated schools.

he Justices framed the issues with stark difference. For Justice Stevens, the issue was state subsidy of religious indoctrination in schools. For the first time, state funding would be provided to religious K-12 education without limitation: the funds could be used for religious education and indoctrination. For Stevens, the issue was:

• Is a law that authorizes the use of public funds to pay for the indoctrination of thousands of grammar school children in particular religious faiths a "law respecting an establishment of religion" within the meaning of the First Amendment? In answering that question, I think we should ignore three factual matters that are discussed at length by my colleagues.

For Justice Thomas, however, the issue was providing quality education and a choice to inner-city children long deprived of educational equality:

• Frederick Douglass once said that "[e]ducation ... means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free." Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court's observation nearly 50 years ago in Brown v. Board of Education, that "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education," urban children have been forced into a system that continually fails them. These cases present an example of such failures. Besieged by escalating financial problems and declining academic achievement, the Cleveland City School District was in the midst of an academic emergency when Ohio enacted its scholarship program.

Justice Rehnquist's majority opinion saw this as a simple application of the Court's emerging neutrality principle articulated in Zobrest, Mueller and Witters. The goal of the program was non-sectarian. There was no evidence that the legislature or supporters of the program were motivated by a desire to promote religion or religious schools. Providing assistance was not a pretext for public assistance to religious schools.

• Mueller, Witters, and Zobrest thus make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.

The Court continued:

• We believe that the program challenged here is a program of true private choice, consistent with Mueller, Witters, and Zobrest, and thus constitutional. As was true in those cases, the Ohio program is neutral in all respects toward religion. It is part of a general and multifaceted undertaking by the State of Ohio to provide educational opportunities to the children of a failed school district. It confers educational assistance directly to a broad class of individuals defined without reference to religion, i.e., any parent of a school-age child who resides in the Cleveland City School District. The program permits the participation of all schools within the district, religious or nonreligious. Adjacent public schools also may participate and have a financial incentive to do so. Program benefits are available to participating families on neutral terms, with no reference to religion. The only preference stated anywhere in the program is a preference for low-income families, who receive greater assistance and are given priority for admission at participating schools.

Throughout the decision, the majority justices pursue the theme that this program seeks to solve the special problem posed by failing inner-city schools. But can one find in the majority a principled constitutional distinction between this narrow use of public funds and a broader appropriation for students of all income levels. Justice O' Connor, the key swing vote on this issue, was careful to emphasize that the decision was not as broad as it might appear. She wrote specifically to suggest that "although the Court takes an important step, I do not believe that today's decision, when considered in light of other long-standing government programs that impact religious organizations and our prior Establishment Clause jurisprudence, marks a dramatic break from the past." Her opinion notes the following factors:

• The share of public resources reaching parochial schools is dwarfed by public school spending. "Although $8.2 million is no small sum, it pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions.",
• The direct tuition grant program does not differ substantially in the nature and volume of aid provided to religious institutions through other resources.
• The decision rests upon a straightforward application of Everson and Lemon: There is a secular legislative purpose, its primary purpose neither inhibits nor advances religion; nor does it foster excessive entanglement with religion.
• Parents are provided with a genuine non-religious choice for use of their tuition vouchers.

For the dissent, however, the the severe educational crisis that confronted the Cleveland City School District when Ohio enacted its voucher program was "not a matter that should affect ...appraisal of its constitutionality." For the program did not present a viable solution to the problem presented:

• In the 1999-2000 school year, that program provided relief to less than five percent of the students enrolled in the district's schools. The solution to the disastrous conditions that prevented over 90 percent of the student body from meeting basic proficiency standards obviously required massive improvements unrelated to the voucher program. Of course, the emergency may have given some families a powerful motivation to leave the public school system and accept religious indoctrination that they would otherwise have avoided, but that is not a valid reason for upholding the program.

How could aid to private schools, then, be considered a legitimate effort to solve the educational problem of the target students? Moreover, the dissent pointed out, the Court failed to understand the fundamental purpose of the establishment clause; to avoid the consequences of a religiously divided nation: Wrote the dissent:

• In reaching that conclusion I have been influenced by my understanding of the impact of religious strife on the decisions of our forbears to migrate to this continent, and on the decisions of neighbors in the Balkans, Northern Ireland, and the Middle East to mistrust one another. Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.